November 15, 2011

DOJ's Lanny Breuer Addresses Sentencing Disparities

A top U.S. Justice Department lawyer today addressed what he described as serious challenges facing sentencing and corrections policy, including the growing disparity in prison terms for white-collar offenders.

Assistant Attorney General Lanny Breuer of the Criminal Division, speaking at a two-day litigation summit, said “significant disparities” have developed in the past several years in financial fraud prosecutions. (ALM and The National Law Journal are sponsoring the conference.)

“With increasing frequency, federal judges have been sentencing fraud offenders—especially offenders involved in high-loss fraud cases—inconsistently,” Breuer said in prepared remarks at the conference at the Ronald Reagan Building and International Trade Center in downtown Washington.

Breuer, citing examples in which he didn’t identify any offender by name, said a defendant in one district may be sentenced to one or two years for causing “hundreds of millions of dollars in losses” while a defendant in another federal court district gets 20 years for a smaller dollar-value loss.

Breuer, who left Covington & Burling as a white-collar defense partner to join DOJ in 2009, said judges are increasingly sentencing offenders to prison terms that are outside guideline ranges. Federal sentencing statistics, he said, show that a person stands to spend less or more time in prison depending on where the prosecution takes place.

Federal trial judges in the U.S. District Court for the Southern District of Texas, he said, sentenced defendants to within the guideline range more than 71 percent of the time last year. District judges in Manhattan, however, by comparison rarely sentenced a person to a term that was within the guidelines—either dipping below or above the range.

“In short, many prosecutors, defense lawyers and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in,” Breuer said in his remarks today.

Breuer implored federal judges to “mete out sentences that are appropriate to the conduct of individual defendants.”

In late October, the U.S. Sentencing Commission issued its first report on mandatory-minimum prison terms in more than two decades.

The commission’s study said that mandatory minimum penalties “apply too broadly, are excessively severe and are applied inconsistently across the country.” The commission also concluded that black male offenders received sentences that were 23.3 percent longer than those impose on white men.

Breuer today called the findings “very troubling” and said “we must work to end such baseless disparities.”